The dramatic events of September 11, 2001 have ramifications for the nature of global governance as well as the institutions of liberal democracy. The most representative democracies have adopted a series of measures that, under the guise of "security" undermine the basis of the rule of law as we know it. "In surprisingly short order, a broad set of emergency powers based on the concept of 'exceptions' has emerged to offer political leaders and other public officials a legislative framework for acting outside normal constitutional and representative institutions. Carl Schmitt, ..., is perhaps the most pre-eminent theorist of the exception: 'exception' is the capacity of the sovereign to make decisions in terms of its political will rather than be constrained by normative 'law'. In this context, the emergence of certain aspects of a 'state of exception' should be a cause for concern for those interested in the protection of fundamental political rights." [ENG]
Kanishka Jayasuriya, Political Science, City University of Hong Kong

On 18 December 2015 the United Nations Security Council unanimously adopted Resolution 2254 (2015) on a peace plan for Syria.

This resolution contains a road map for a peace process in Syria, setting out an early-January timetable for United Nations-facilitated talks between the Government and opposition members, as well as the outlines of a nationwide ceasefire to begin as soon as the parties concerned had taken initial steps towards a political transition.

It expresses support for a Syrian-led political process facilitated by the United Nations which would establish "credible, inclusive and non-sectarian governance" within six months and set a schedule and process for the drafting of a new constitution.

The Council also expressed support for free and fair elections, pursuant to the new constitution, to be held within 18 months and administered under United Nations supervision, “to the highest international standards” of transparency and accountability, with all Syrians — including members of the diaspora — eligible to participate.

The Council acknowledged the close link between a ceasefire and a parallel political process, pursuant to the 2012 Geneva Communiqué, and that both should move ahead expeditiously. It requested that the Secretary-General lead the effort to determine the modalities and requirements of a ceasefire, and urged Member States — particularly members of the Support Group — to accelerate all efforts to achieve a ceasefire, including by pressing all relevant parties to adhere to one.

Following the unanimous adoption of Resolution 2254, on 18 December 2015 the U.S. Secretary of State John Kerry, Council President for December 2015, the Minister for Foreign Affairs of the Russian Federation, Sergey Lavrov, and the UN Special Envoy on Syria, Staffan de Mistura, held a Press Conference at the UN headquarters in New York.

This program reproduces the content of the said Press Conference as broadcasted by the UN Web TV service.

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April 2014

EU - The Court of Justice of the EU declares the Data Retention Directive to be invalid. Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 23Apr14.

On April 8th, 2014, the Court of Justice of the European Union ruled that the mass storage of telecommunications data violates the fundamental rights to respect for private life and to the protection of personal data.

The EU Data Retention Directive compelled telephone and Internet companies to retain traffic and location data as well as related data necessary to identify the subscriber or user for the purpose of the prevention, investigation, detection and prosecution of serious crime, such as, in particular, organised crime and terrorism.

The European Court of Justice had to issue a preliminary ruling concerning the validity of Directive 2006/24/CE of the European Parliament and of the Council of 15 March 2006. The request addressed to the European Court has its origin in a case triggered in Ireland by Digital Rights Ireland. The Court joined this case with another request made by the Austrian Constitutional Court concerning the compatibility with the Federal Constitutional Law of the law transposing Directive 2006/24 into Austrian national law.

The Court has found that data retention entails a wide ranging and particularly serious interference with the fundamental right to privacy... "The Court observes first of all that the data to be retained makes it possible, in particular :

to know the identity of the person with whom a subscriber or registered user has communicated and by what means,

to identify the time of the communication as well as the place from which that communication took place and

to know the frequency of the communications of the subscriber or registered user with certain persons during a given period."

"Those data, taken as a whole, may provide very precise information on the private lives of the persons whose data are retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, activities carried out, social relationships and the social environments frequented."

"The Court takes the view that, by requiring the retention of those data and by allowing the competent national authorities to access those data, the directive interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data."

Though the Directive has now been struck down, the issue will remain live in all the countries who have passed domestic law to implement the data retention mass surveillance regime.

USA - State of Exception and the CIA's extra-judicial rendition and interrogation program. Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 03Apr14

The United States is implicated in a case currently pending before the European Court of Human Rights concerning two Guantánamo detainees who claim to have been tortured in Poland after an extraordinary rendition by the Central Intelligence Agency (the "CIA")

The applicants are Abd Al Rahim Hussayn Muhammad Al Nashiri, a Saudi Arabian national of Yemeni descent who was born in 1965; and Zayn Al-Abidin Muhammad Husayn, also known as Abu Zubaydah, a stateless Palestinian, who was born in 1971 in Saudi Arabia. Both men are currently detained in the Internment Facility at the U.S. Guantanamo Bay Naval Base in Cuba...

"Both applicants allege that they were victims of 'extraordinary renditions' by the CIA, that is, of apprehension and extrajudicial transfer to a secret detention site in Poland with the knowledge of the Polish authorities for the purpose of interrogation, during which they were tortured. Both men state that in December 2002 they were taken to Poland on board the same 'rendition plane'."

Both detainees' submissions are based in the so-called "Marty Reports", prepared by Swiss Senator Dick Marty, in 2006, 2007 and 2011, as rapporteur for the investigation conducted by the Parliamentary Assembly of the Council of Europe into allegations of secret detention facilities being run by the CIA in several Member States; they are also based on a report prepared by the CIA inspector general in 2004 on 'counterterrorism detention and interrogation activities' between September 2001 and October 2003. Their submissions also refer to a 2007 report by the International Committee for the Red Cross on the treatment of 'high value detainees' in CIA custody...

"The Marty Reports detail an intricate network of CIA detention and transfer in certain Council of Europe States. Among other things, the reports identify the secret detention centre in Poland as being located in the Stare Kiejkuty intelligence training base near the town of Szczytno in Northern Poland."

Mr Al Nashiri’s and Mr Husayn's complaints before the European Court of Human Rights relate to three principal issues: their torture, ill-treatment and incommunicado detention in Poland while in US custody; their transfer from Poland; and, Poland’s failure to conduct an effective investigation into the events."

"More recently, evidence has emerged that the CIA paid $15 million in cash to the intelligence service of Poland in order to make use of a secret detention site there to interrogate al-Qaeda suspects..."

Also, the Senate Intelligence Committee has produced a 6,300-page study, not available to the public yet, on the CIA Detention and Interrogation Program. Its Chairman, Dianne Feinstein, spoke on the Senate floor on 11 March 2014 in order to clarify the information that was published by the press concerning the CIA's intrusion and search of the Senate Select Committee's computers as well as the committee's acquisition of a certain internal CIA document known as the Panetta Review.

The debate surrounding the CIA's interrogation program is being revisited...

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July 2013

USA - New report summarizes the available information on how the NSA operates. Radio Nizkor, 12Jul13

A new report from the Congressional Research Service entitled "NSA Surveillance Leaks: Background and Issues for Congress", summarizes for Congress what is publicly known about the two National Security Agency surveillance programs that were disclosed by Edward Snowden and reported in June 2013 by The Guardian and The Washington Post.

According to this report: "Since these programs were publicly disclosed over the course of two days in June, there has been confusion about what information is being collected and what authorities the National Security Agency (NSA) is acting under. This report clarifies the differences between the two programs and identifies potential issues that may help Members of Congress assess legislative proposals pertaining to NSA surveillance authorities."

"These programs arise from provisions of the Foreign Intelligence Surveillance Act (FISA). However, they rely on separate authorities, collect different types of information, and raise different policy questions. For both programs, there is a tension between the speed and convenience with which the government can access data of possible intelligence value and the mechanisms intended to safeguard civil liberties. The first program collects and stores in bulk domestic phone records that some argue could be gathered to equal effect through more focused records requests. The second program targets the electronic communications of non-U.S. citizens but may incidentally collect information about Americans..."

Steven Aftergood, in charge of the Project on Government Secrecy of the Federation of American Scientists, states that "this report does not present any new factual material concerning the surveillance programs. But it identifies some outstanding questions about them — the word 'unclear' is used several times — and it formulates topics for congressional consideration".

Radio Nizkor has excerpted from this report the sections pertaining to: a) What Information Is Being Collected?, b) What Are the Legal Bases for the Collection? and, c) What Oversight Mechanisms Are in Place?, as these sections contain information on how the NSA operates these programs.

"'God we trust,' goes an old National Security Agency joke. 'All others we monitor'. [...]

While the Obama administration and Senate intelligence committee members defend the spying as crucial in its fight against terrorism, this is only the latest chapter in nearly a century of pressure on telecommunications companies to secretly cooperate with NSA and its predecessors. But as stunning technology advances allow more and more personal information to pass across those links, the dangers of the United States turning into a secret surveillance state increase exponentially.

The NSA was so flooded with billions of dollars from post-Sept. 11, 2001 budget increases that it went on a building spree and also expanded its eavesdropping capabilities enormously. Secret rooms were built in giant telecom facilities, such as AT&T's 10-story "switch" in San Francisco. There, mirror copies of incoming data and telephone cables are routed into rooms filled with special hardware and software to filter out email and phone calls for transmission to NSA for analysis. [...]

Today the NSA is the world's largest spy organization, encompassing tens of thousands of employees and occupying a city-size headquarters complex on Fort Meade in Maryland. But in 1920, its earliest predecessor, known as the Black Chamber, fit into a slim townhouse on Manhattan's East 37th Street.

World War One had recently ended, along with official censorship, and the Radio Communication Act of 1912 was again in effect. This legislation guaranteed the secrecy of electronic communications... To the Black Chamber, however, the bill represented a large obstacle to be overcome--illegally, if necessary.

So the Black Chamber chief, Herbert O. Yardley, and his boss in Washington, General Marlborough Churchill, head of the Military Intelligence Division, paid a visit to 195 Broadway in downtown Manhattan, headquarters of Western Union. This was the nation's largest telegram company - the email of that day... The two government officials took the elevator to the 24th floor for a secret meeting with Western Union's president, Newcomb Carlton. Their object was to convince him to grant them secret access to the private communications zapping through his company's wires.

It was easier achieved than Yardley had ever imagined... Yardley later described, "President Carlton seemed anxious to do everything he could for us.'"

Time and again over the decades, this pattern has been repeated. The NSA, or a predecessor, secretly entered into agreements with the country's major telecommunications companies and illegally gained access to Americans' private communications. [...]

Thus, for roughly 100 years, whenever the government knocked on the telecommunications industry's door and asked them to break the law and turn over millions upon millions of private communications, the telecoms complied.... But unlike with Yardley and the Black Chamber, the dangers today of secret cooperation between the telecom and Internet industry and the NSA are incomparable... We now live in an era when access to someone's email account and web searches can paint a more detailed picture of their life then most personal diaries. Secret agreements between intelligence agencies and communications companies should not be allowed in a democracy. There is too much at risk...

EU/Bel - SABAM vs Netlog: Another important ruling for the Open Internet and for fundamental rights after Scarlet vs. SABAM. (European Digital Rights). Radio Nizkor, 19Mar12.

"A few months after the Scarlet/SABAM case, the Court of Justice of the European Union has released a new decision on the legality of filtering systems on the Internet, this time with regard to filtering of content stored on web services.

Last February 16th, the Court of Justice of the European Union ruled that a social network “cannot be obliged to install a general filtering system, covering all its users, in order to prevent the unlawful use of musical and audio-visual work”.

SABAM brought the social network Netlog to court to impose an injunction requiring the installation of filtering systems aimed at the prevention of infringements committed by its Belgian members (around 2 million consumers) on its website.

A social network is a set of online communication tools that allow the creation and exchange of user-generated content. Netlog is an online platform, where members can create their own webpage with a blog, pictures, playlists, videos… and as such considered as a social network, and a hosting provider...

The SABAM v. Netlog judgment represents a new win for fundamental freedoms.

Particularly now, in a political climate where the foundations of the current Internet are at stake, the European judges have re-emphasised the importance of not overburdening communication tools with restrictive technologies. This is crucial to protect the fundamental rights value of the Internet as well as its economic significance.

For the second time in a just a few months, thanks to actions taken by SABAM have led the Court of Justice of the EU to underline the importance of an open and free Internet and the respect for fundamental freedoms, such as the freedom of communication privacy and the freedom to conduct business.

But what is the difference between the Scarlet case and the Netlog decision?. The wording of the questions was the same in both cases except that the Netlog decision specifically addresses the situation of hosting providers, while the Scarlet case involved Internet access providers...

In the Scarlet case, the issue was about an access provider, a "mere conduit" (a service consisting of "transmission" in a communication network) in the language of the E-Commerce Directive.

SABAM wanted the ISP Scarlet to install a generalised filtering system for all incoming and outgoing electronic communications passing through its services and to block potentially unlawful communications.

In First Instance, while refusing the liability of the ISP, the Brussels Court concluded that the SABAM's claim was legitimate and that a filtering system had to be deployed. Scarlet appealed and the case was referred to the Court of Justice of the European Union. In its decision, the Court of Justice ruled that a filtering and blocking system for all its customers for an unlimited period, in abstracto and as preventive measure, violates fundamental rights, more particularly the right to privacy, freedom of communication and freedom of information. In addition, it breaches the freedom of ISPs to conduct business..."

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January 2012

EU/USA - US intervenes in the revision of the EU data protection Directive while EU Commission postpones the publication of the proposal for its review. (Privacy and Information Security Law blog, European Digital Rights). Radio Nizkor, 30Jan12.

"According to a spokesperson at the European Commission, the publication of the proposal for the review of the EU Data Protection Directive has been postponed until late February or March 2012.

The draft proposal was scheduled to be officially released in late January after it was leaked in December 2011.

According to various sources, the proposal received negative responses from several Directorates-General over the course of the 'inter-service consultation,' some of whom have voiced their concern that the proposed new framework would be stricter than the current legal framework and thus may have a negative impact on businesses.

For example, parts of the proposal, such as the right to be forgotten, are viewed by some as potentially too burdensome for companies.

The delay in the release date for the proposal will push back the formal adoption of the draft proposal by the European Commission.

Viviane Reding, Justice Commissioner and Commission Vice-President, is said to be working on a communication in which she will outline several key goals and objectives for the draft proposal. The draft proposal has not yet entered into the legislative process and may undergo substantial changes before it reaches that stage."

European Digital Rights informs that "right at the end of the inter-service consultation process in the European Commission (the almost final step before a legislative proposal is launched), the United States Department of Commerce launched a significant lobbying campaign against the leaked draft proposal for a Data Protection Regulation. The campaign included high-level phone calls from senior figures in the US Department of Commerce to top level staff in the European Commission covering topics such as US business, multilateral and bilateral treaty organizations, PNR, national security, law enforcement, trade and innovation."

"In general, the US complained about the draft proposal arguing that it will break with international standards and might even end up being counterproductive for data protection..."

European Digital Rights has analized the most prominent exaggerations and misunderstandings in the US paper, namely those pertaining to interoperability, data breach requirements, right to be forgotten, definition of "child", adequacy, regulatory enforcement and international cooperation.

It concludes that "Most of the objections are rather specious, obviously weak or plain wrong and interest-driven, aiming to water down the standards in the leaked draft Regulation. This early-stage intervention obviously aims at reducing interference with access by the US to any data about European citizens in the course of their investigations, showing very little effort to understand the European concept of privacy."

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USA/EU - The proposed EU-US Passenger Name Record (PNR) agreement breaches data protection, due process and other fundamental rights. Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 30Jan12.

On 17 November 2011, U.S. and EU officials initialled a proposed agreement to authorize airlines to forward passenger name record data to the U.S. Department of Homeland Security (DHS).

Although the agreement cannot take effect without the approval of the European Parliament and the Council, the Members of the European Parliament (MEPs) could read the proposed agreement only in a sealed room where they could not take notes or make copies.

The complete text on which the European Parliament will vote has finally been made public, revealing a failure to address the concerns raised by the Parliament and continued shortfalls in data protection, due process, and protection of fundamental rights.

In its resolution of 5 May 2010, the Parliament said that the Passenger Name Record (PNR) agreement should take the form of a treaty, recognize the fundamental right to freedom of movement, prohibit the use of PNR data for data mining or profiling, and take into consideration "PNR data which may be available from sources not covered by international agreements, such as computer reservation systems located outside the EU."

The proposed agreement does not meet these criteria, and does not mention any of these issues...

In view of the upcoming vote on the EU-USA PNR Agreement, the Austrian Organization for the Use of the Internet and NoPNR.org, with the endorsement, among others, of The Identity Project, Friends of Privacy USA, Center for Financial Privacy and Human Rights, Statewatch and Privacy International, sent an Open Letter to the European Parliament asking its Members to consider the following issues for their decision on the EU-US PNR Agreement:

The proposed agreement will not result in improved legal security for citizens

There is no access control or access logging

The proposed agreement does not meet the conditions set by the European Parliament

There is no appropriate information to travelers

This program has been prepared with information provided by the Electronic Privacy Information Center, European Digital Rights, The Identity Project and StateWatch.

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USA - The National Defense Authorization Act for 2012: A Great Threat to Americans' Civil Liberties and Rights. (The New York Times, Michel Chossudovsky for the Centre for Research on Globalisation, ACLU, The Center for Constitutional Rights, and E. D. Kain for Forbes). Radio Nizkor, 24Jan12.

"With minimal media debate, at a time when Americans were celebrating the New Year, the 'National Defense Authorization Act' (H.R. 1540) was signed into law by President Barack Obama. The actual signing took place in Hawaii on the 31st of December.

The National Defense Authorization Act (NDAA) authorises the arbitrary and indefinite military detention of American citizens.

According to Obama's "signing statement", the threat of Al Qaeda to the Security of the Homeland constitutes a justification for repealing fundamental rights and freedoms. The relevant provisions pertaining to civil rights were carefully esconded in a short section of a document of more than 500 pages.

President Obama says he disagrees with the NDAA but he signs it into law: '[I have] serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists' , the President wrote. He acknowledges that certain provisions of the Act (contained in Subtitle D--Counterterrorism) are unacceptable.

The fact of the matter is that both the Executive and the US Congress are complicit in the drafting of Subtitle D. In this regard, Senator Carl Levin (D-Mich.) revealed that it was the White House which had asked the Senate Armed Services Committee 'to remove language from the bill that would have prohibited U.S. citizens' military detention without due process'.

President Obama justifies the signing of the NDAA for 2012 as a means to combating terrorism, as part of a 'counter-terrorism' agenda. But in substance, any American opposed to the policies of the US government can --under the provisions of the this Act-- be labelled a 'suspected terrorist' and arrested under military detention... The signing statement does not in any way invalidate or modify the actual signing by President Obama of the NDAA into law. It does not have any bearing on the implementation/enforcement of the Law...'

The 'most important traditions and values' in derogation of The Bill of Rights and the US Constitution have indeed been repealed, effective on New Year's Day, January 1st 2012..."

On the other hand, Forbes contributor E. D. Kain explains that "The proof that this bill does not expressly exempt U.S. citizens or those captured on U.S. soil is that amendments offered by Sen. Feinstein providing expressly for those exemptions were rejected. The 'compromise' was to preserve the status quo by including the provision that the bill is not intended to alter it with regard to American citizens, but that's because proponents of broad detention powers are confident that the status quo already permits such detention."

"In part the National Defense Authorization Act helps to preserve the status quo established a decade ago with the original provisions in the PATRIOT Act giving the government broad new powers in the so-called War on Terror.

In part the bill expands those powers, codifying the use of indefinite detention of foreign nationals and possibly US citizens arrested abroad and at home. In part the bill expands the use of the US military on domestic soil, at once complicating anti-terrorism strategies at home and raising serious questions about the role of the military in law enforcement.

All these things should make Americans - and not just Americans - very nervous about the preservation of their civil liberties. That precarious balance between security and liberty is looking ever more tilted toward the former and away from the latter. The History of Anti-Terrorism is Bad News for Civil Liberties..."

"US authorities have resumed their 'Operation in Our Sites' in order to attempt to fight counterfeit and piracy-related websites..

The introduction of draft bills, such as the Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) aims at providing a legal basis for domain names and IP address seizures.

SOPA's broad definitions could indeed mean that no online resource in the global Internet would be outside US jurisdiction.

In response to these legislative proposals and repeated unilateral measures against European websites, the European Parliament adopted a resolution on 17 November 2011 in preparation of the EU/US summit stressing 'the need to protect the integrity of the global internet and freedom of communication by refraining from unilateral measures to revoke IP addresses or domain names.' The joint EU/US summit declaration published on 28 November 2011 indeed says: "We share a commitment to a single, global Internet, and will resist unilateral efforts to weaken the security, reliability, or independence of its operations".

However, despite the big show of opposition to the US bills and the Parliament's actions, Internet filtering and blocking schemes like SOPA and PIPA are still on the agenda on the other side of the Atlantic claiming worldwide jurisdiction for domain names and IP addresses.

According to recent reports, attempts to terminate the Internet's end-to-end architecture also seem to get even closer to the core of the Internet. This sort of access restriction is an experiment with key functions of the Internet, increasing the risk of fragmentation of the global Internet and as one co-chair of the DNS Working group of the European Regional Internet Registry stated, this gives restrictive tools 'to the bad guys'..."

On November 15th, 2011, a collection of international civil society and human rights organizations sent a letter to the House Judiciary Committee Chairman Representative, Lamar Smith (R-Texas), and Ranking Member Rep. John Conyers, Jr. (D-Michigan).

The groups called into question several provisions of the Stop Online Piracy Act (SOPA) that would have 'serious implications for international civil and human rights' and the integrity of the global internet. "By imposing technical changes to the open internet while eroding due process, SOPA introduces a deeply concerning degree of legal uncertainty into the internet economy, particularly for businesses and users internationally.

Business cannot be conducted online when international users and businesses do not have faith that their access to payments, domain names, and advertising will be available, raising challenges to economic development and innovation. This is as unacceptable to the international community as it would be if a foreign country were to impose similar measures on the United States.

The provisions in SOPA on DNS filtering in particular will have severe consequences worldwide...

By instituting this practice in the United States, SOPA sends an unequivocal message to other nations that it is acceptable to censor speech on the global Internet. Additionally, Internet engineers have argued in response to the Protect IP Act, DNS filtering would break the internet into separate regional networks.

Worse still, the circumvention technology that can be used to access information under repressive Internet regimes would be outlawed under SOPA, the very same technology whose development is funded by the State Department..."

This program also addresses the problems being faced by the the Internet Corporation for Assigned Names and Numbers (ICANN) as regards the introduction of new top-level domains (TLDs). Larry Strickling, head of the US National Telecommunication and Information Administration (NTIA), said his agency is “seriously considering” using the Internet Assigned Numbers Authority (IANA) – the entity administering the domain name system root zone currently managed by ICANN under a contract with the US government – to push for accountability and transparency of ICANN. To some, this might be considered a threat. For ICANN, this could mean losing core functions, such as DNS root zone management, including the TLDs and ccTLDs (country-code top-level domains, like .uk), internet protocol address allocation management on the global level, or protocol assignment...

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December 2011

USA/EU - "Outside the United States, Extraordinary Rendition on Trial". (Alka Pradhan for the American Society of International Law). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 16Dec11.

"Three pending cases before the European Court of Human Rights highlight allegedly illegal acts committed by European countries in connection with the U.S. extraordinary rendition program.

The first, filed by Khalid El-Masri in September 2009, claims unlawful abduction and mistreatment by the Macedonian Ministry of the Interior.

The second was filed by Abd Al-Rahim al Nashiri for alleged mistreatment during his detention at a secret prison (“black site”) in Poland...

The third, most recent case was filed against Lithuania by Zayn al-Abidin Muhammad Husayn (“Abu Zubaydah”) for alleged secret detention and torture by CIA agents committed at a Lithuanian black site...

El-Masri’s petition alleges that Macedonia violated Article 3 (prohibition of torture or inhuman or degrading treatment or punishment) of the European Convention on Human Rights by failing to intervene during his torture and inhuman treatment by CIA agents in Macedonia; by allowing him to be transported to Afghanistan with the knowledge that he would be tortured and inhumanly treated at the destination; and by failing to investigate his arrest, detention, and transfer to the CIA by Macedonian authorities.

Additionally, El-Masri claims that his detention by Macedonian authorities for twenty-three days, along with his transfer to CIA agents, violated his right to liberty and security of person (Article 5), and that the failure by the Macedonian criminal courts to hear his case violated his right to remedy guaranteed by Article 13 of the Convention.

Regarding Al Nashiri, his petition alleges violations of Articles 2 (right to life), 3 (prohibition of torture or inhuman or degrading treatment or punishment), 5 (liberty and security of person), 8 (right to private and family life), 10 (freedom of expression), and 13 (right to remedy) of the Convention, and Protocol 6 to the Convention (abolition of the death penalty)...

If the Court accepts El-Masri’s and/or al Nashiri’s applications, both the applicants and the member states will be invited to present their claims before the Court. Should the Court find that a member state has violated the Convention, it may issue a declaratory judgment, order payment of damages and legal costs, or implement other measures of reparation.

Chamber judgments may be appealed to the “Grand Chamber,” whose judgments are final. Because the United States is not a party to the European Court of Human Rights, it is not named in the applications. However, if the United States decides to participate in the proceedings, the Court has the discretion to allow a third party to intervene in the form of written comments..."

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November 2011

UN - Despite the reforms introduced by the UN Security Council, due process guarantees remain unsatisfactory when listing individuals or entities as terrorists. Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 30Nov11.

On 17 June 2011, the UN Security Council voted unanimously to pass two resolutions which would reform the Al-Qaida and Taliban sanctions regime.

Security Council resolutions 1988 and 1989 create two separate sanctions regimes, one for Al-Qaida and another for the Taliban. Up until this point, there has only been one sanctions regime to deal with both groups, established under Security Council Resolution 1267 in 1999...

This change lays the groundwork for de-listing members of the Taliban to participate in the so-called reconciliation efforts in Afghanistan.

The UN special Rapporteur on human rights and counter-terrorism at that time, Martin Scheinin, said the changes to the sanctions regime do not resolve fundamental deficiencies throughout the listing and de-listing process and exacerbates other human rights concerns.

In his statement the Rapporteur says that "The terrorist blacklist has been subject to consistent and growing criticism, including by certain judicial bodies and the Human Rights Committee, for its human rights shortcomings. Issues of fair trial and due process, right to privacy, freedom of movement and right to property have been raised and litigated".

Despite the reforms, the Special Rapporteur has maintained the position that the procedures for terrorist listing and delisting by the 1267 Committee of the Security Council do not meet international human rights standards concerning due process or fair trial.

Therefore he takes the view that as long as proper due process is not guaranteed at the United Nations level when listing individuals or entities as terrorists, national (or European Union) courts will need to exercise judicial review over the national (or European) measures implementing the sanctions...

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USA - The War Powers Resolution should be revised. (Chris Economou, International Affairs Review, 17Oct11). Radio Nizkor, 29Nov11.

"Before U.S. President Barack Obama committed American forces to the North Atlantic Treaty Organization (NATO) mission in Libya last spring, he neglected to provide an adequate reason for America's involvement or seek approval from Congress. [...]

Obama's failure to consult with Congress creates a dangerous precedent that denies Congress a say in deciding when and how U.S. military forces should be used and instead places these decisions into the hands of just one person - the president. [...]

The U.S. Constitution grants Congress the power to declare wars and fund the military. However, the Constitution simultaneously empowers the president to carry out wars as commander-in-chief. Both branches of government have long debated this dichotomy of war powers.

The War Powers Resolution of 1973 meant to end this debate by requiring closer collaboration between the branches when the United States enters into a conflict. [...]

Passed over a presidential veto, the War Powers Resolution means to serve as a check on the president's ability to commit U.S. forces to lengthy military engagements without approval from Congress.

Since the start of U.S. involvement in NATO's Libya mission, President Obama has neglected the War Powers Resolution by denying that the conflict is actually a war. [...]

Considering that America provided the bulk of NATO's military capabilities and funding in Libya, this was as much America's war as it was NATO's.

Therefore, Obama should have consulted with and sought approval from Congress and adhered to the 60-day deadline, as the Resolution requires.

To prevent future presidents from ignoring Congress' role in military conflicts, the War Powers Resolution should be revised to make it more specific and binding..."

"Civil liberties group raises concerns over Metropolitan police purchase of technology to track public handsets over a targeted area.

Britain's largest police force is operating covert surveillance technology that can masquerade as a mobile phone network, transmitting a signal that allows authorities to shut off phones remotely, intercept communications and gather data about thousands of users in a targeted area.

The surveillance system has been procured by the Metropolitan police from Leeds-based company Datong plc, which counts the US Secret Service, the Ministry of Defence and regimes in the Middle East among its customers.

Strictly classified under government protocol as "Listed X", it can emit a signal over an area of up to an estimated 10 sq km, forcing hundreds of mobile phones per minute to release their unique identity codes, which can be used to track a person's movements in real time.

The disclosure has caused concern among lawyers and privacy groups that large numbers of innocent people could be unwittingly implicated in covert intelligence gathering...

Nick Pickles, director of privacy and civil liberties campaign group Big Brother Watch, warned the technology could give police the ability to conduct "blanket and indiscriminate" monitoring... He added that "Such invasive surveillance must be tightly regulated, authorised at the highest level and only used in the most serious of investigations. It should be absolutely clear that only data directly relating to targets of investigations is monitored or stored." [...]

Regarding the investigatory powers act, lawyers have condemned what appears to be deception of the courts by undercover police and have called for fundamental reforms of the legislation governing covert operations.

"The revelation that a constable who infiltrated protest groups gave false evidence in court under oath triggered demands for a review of the Regulation of Investigatory Powers Act (Ripa)...

Gordon Nardell QC, who is leading the Bar Council's working party on the operation of Ripa, said that “At the moment the law allows the police to target legally privileged communications between lawyer and client”. "The Bar Council thinks that is fundamentally wrong and creates a risk of miscarriages of justice. People accused of crime must be able to speak freely with their lawyer in the knowledge that what they say is kept from the ears of the investigating authorities.”

"We hope to persuade the House of Lords to make amendments to the protection of freedoms bill to ban the police from covertly gaining access to privileged lawyer-client communications..."

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EU - The Data Retention Directive should be repealed given that it does not meet privacy requirements. (Electronic Privacy Information Center, European Digital Rights, Office of the European Data Protection Supervisor). Radio Nizkor, 29Nov11.

The Directive applies to traffic and location data and the "related data necessary to identify" a user. Each EU member state must retain this data for a period of six months to two years from the date of the user's communication.

The Directive also requires each EU member state to enact procedures that grant law enforcement access to the data. According to Hustinx, the Directive does not provide clear guidance about why this data must be retained or who will have access to it.

Similarly, Hustinx believes that the Directive does not sufficiently justify the necessity of the data retention, lacks foreseeability, and is overly intrusive. He also notes that statistics on access requests indicate that a retention period of up to two years 'goes far beyond' what is necessary. In light of these concerns, Hustinx has asked the European Commission to consider all other options, 'including the possibility of repealing the Directive.' [...]

On 26 September 2011, European Digital Rights and 37 other NGOs from 14 countries sent a letter to Commissioners Malmström, Kroes and Reding on the review of the Data Retention Directive.

In their communique informing of the sending of the letter, European Digital Rights states “The central mistake which we would like not to see repeated is the fallacy that all uses of retained data can be used to argue that the Directive is valuable. In reality, recently generated data is more likely to be used in investigations and such data would have been available anyway even if the Directive had never existed.”

The letter also draws attention to some of the core problems with the Directive, such as the lack of a harmonised definition of "serious crime" (and the far reaching consequences of this) and the lack of a harmonised approach to access and security.

EDRi recalls that "Article 52 of the Charter of Fundamental Rights of the European Union states that limitations of fundamental rights must not restrict or reduce the right in such a way or to such extent that the very essence of the right is impaired. The European Court of Human Rights has ruled similarly on numerous occasions."

Ironically, the Directive was proposed as a measure to harmonise the approach to this policy in the European Union - even though few countries had such a policy to begin with. It managed to disharmonise the single market, by forcing the policy onto 27 countries, with vastly varying retention periods, rules for cost reimbursement, etc.

The next step in the process for the Commission will be the preparation of an "Impact Assessment", listing a number of different policy options and coming to the conclusion (as has already been politically decided) that the Directive is useful but offering some small concessions, such as a small reduction in the maximum retention period, which will be sold as major improvements in the deeply flawed legislation...

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UN/EU - Time to Rethink Terrorist Blacklisting. (Statewatch, Jan11). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 29Nov11.

"The terrorist proscription regimes enacted by the United Nations (UN) and the European Union (EU) after the attacks of 9/11 have been seriously undermined by growing doubts about their legality, effectiveness and disproportionate impact on the rights of affected parties. [...]

Ostensibly, these 'smart sanctions' (which target groups and individuals rather than whole populations) are designed to disrupt the activities of terrorist groups by criminalising their members, cutting off their access to funds and undermining their support.

In practice, however, far too many people have been included in national and international terrorism lists. At the same time, they have been systematically denied the possibility of mounting a meaningful defence to the allegations against them. Moreover, many listings are clearly politically or ideologically motivated, undermining genuine counter-terrorism efforts and paralysing conflict resolution efforts.

The UN blacklisting regime stems from UN Security Council Resolution 1267, which created the first list of alleged terrorists "associated with Osama bin Laden, the Taliban and Al-Qaeda". [...]

The EU's terrorist lists stem from the measures it took to transpose Resolution 1373 into EU law and currently stands at 57 individuals and 47 organisations. In addition to the UN and EU lists, many states have adopted domestic blacklists, massively expanding the net of criminalisation.

Whereas the EU has adopted a particularly broad definition of ‘terrorism’, the UN has failed to reach such an understanding, despite decades of deliberation. UN Security Council Resolution 1373 thus effectively outsources the definition of terrorism to nation states, encouraging the criminalisation of groups on the basis of geopolitical, foreign policy or diplomatic interests.

The criminalisation of self-determination movements that has resulted has transformed the migrant and Diaspora communities that support them into ‘suspect communities’ and obstructed peace processes aimed at resolving such conflicts.

There is now an irrefutable body of expert legal opinion that views international proscription regimes as incompatible with the most basic standards of due process. The adverse and unacceptable impact of the sanctions on fundamental human rights is also abundantly clear and systemic violations have been recognised repeatedly in judicial proceedings, particularly within Europe.

Listing decisions are usually based on secret intelligence material that neither blacklisted individuals nor the Courts responsible for reviewing the implementation of the lists will ever see. Needless to say, affected parties cannot contest the allegations against them (and exercise their right to judicial review) if they are prevented from knowing what the allegations actually are..."

This program shows the current state of the debate on what is known as "net neutrality" and the discussion points at a EU level based on the corresponding Opinion of the European Data Protection Supervisor (EDPS).

Net neutrality refers to the issue of whether Internet service providers (ISPs) should be allowed to monitor network traffic to filter or restrict Internet access, for example to block specific services or applications (for example peer to peer) or give preference access to others.

On October 7th, 2011 the EDPS, Peter Hustinx, released an opinion on the European Commission Communication on the open internet and net neutrality in Europe, a communication that had been adopted by the Commission on April 19th, 2011. (The Supervisor is an independent supervisory authority devoted to protecting personal data and privacy and promoting good practice in the EU institutions and bodies).

According to "La Quadrature du Net", an European advocacy group that promotes the rights and freedoms of citizens on the Internet, the EDPS's opinion on Net neutrality is a ground-breaking opinion. "He stresses that restrictions to Internet access inevitably harm privacy".

As the European Parliament enters in the final stage of the negotiations on its resolution on Net neutrality, this opinion underlines that the EU Commission's "wait and see" approach is bound to fail and is unjustifiable. Members of the EU Parliament - who will soon hold a crucial vote on the matter - must preserve citizens' privacy by requiring strong regulatory measures to ban discrimination of online communications.

In fact, the "Industry Committee" of the European Parliament unanimously adopted a resolution last October 20th demanding that the European Commission promptly assess the need for further legislative action...

La Quadrature du Net considers that the resolution passed by the Industry Committee is overall a positive text. However, the resolution falls short of asking for immediate legislative action to protect Net neutrality and for sanctions against Internet Service Providers who restrict access to the Internet. It also includes a loophole, which risks being interpreted as accepting such restrictions on mobile Internet on the pretext of alleged network congestion.

Jérémie Zimmermann, spokesperson for La Quadrature du Net, said that “While rather weak, the adopted resolution is a political commitment from the European Parliament in favour of Net neutrality, and aims to prevent telecom operators from restricting Internet access. Pressure is increasing on Commissioner Neelie Kroes and the EU telecoms regulators to come up with further legislation. Mrs Kroes must break away from her 'wait and see' approach and take action to effectively protect competition, innovation as well as citizens' freedom of expression and privacy online".

The draft guidelines on "Net Neutrality and Transparency" proposed by the Body of European Regulators for Electronic Communications (BEREC) in October 2011, have actually nothing to do with Net neutrality according to privacy groups, and instead readily accept that telecom operators can restrict access to the Internet as long as users are informed. They only prove that mere transparency and competition will not prevent operators from violating Net neutrality.

The text adopted in the Committee on Industry, Research and Energy vote will now move to be adopted in plenary without the possibility of further amendments, in a vote scheduled for late-November 2011...

"Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks more frequently goes by the name of the Data Retention Directive.

The Directive requires service provider to keep communications data concerning: phone-calls, faxes, mobile phone calls (including location) and internet usage (it should be noted that the monitoring of internet usage also reveals the content).

This highly controversial legislation was passed in 2006, its path cleared by the terrorist attacks in London and Madrid. Both these occasions provided the Council with the opportunity to introduce EU-wide data retention measures

Perhaps the most well-known comment on the Data Retention Directive is that of the European Data Protection Supervisor, who referred to it as “the most privacy invasive instrument ever adopted by the EU in terms of scale and the number of people it affects.” This statement reinforced the arguments made by numerous civil society organisations, individuals and politicians.

It is because of the highly invasive nature of the surveillance and monitoring permitted by mandatory data retention that the directive was annulled or suspended by court decisions in several Member States...

However, the idea that data retention and greater surveillance of telecommunications will help in the “fight against terrorism” is persistent, and seems to be resonating across Europe. The situation in Norway and the failure of police and security services to prevent the attacks has given rise to a number of arguments for enhanced surveillance of the internet.

At the EU level, there remains a significant lobby opposing any comprehensive re-thinking of how data retention should work, or whether it is necessary at all.

A number of Member States are strongly in favour of retaining the Directive as it stands – a recent leaked paper drafted by France, Ireland and the UK states that data retention "has played a key role in maintaining public security throughout Europe."

The paper attempts to justify current data retention legislation on numerous grounds, not least through recounting tales of specific cases where retained data has been successfully utilised.

Yet it may have been entirely possible to solve these cases without mandatory, blanket retention of all telecommunications information by targeting suspects. Alternative options include a process known as “quick-freeze”, whereby law enforcement bodies are able to ensure the retention of specific telecommunications data after an investigation has begun.

The differences between Member States were reflected at a recent meeting of the Working Party on Data Protection and Information Exchange...

It remains to be seen whether the original Directive will be amended or repealed in order to better respect the rights to privacy and data protection provided by Articles 7 and 8 of the European Charter of Fundamental Rights, and the right to privacy outlined in Article 8 of the European Convention on Human Rights..."

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August 2011

USA - The Court of Appeals for the Seventh Circuit in Chicago Rules Rumsfeld Can Be Held Liable for Torture of U.S. Citizens in War Zones. (Government Accountabilty Project; Inter Press Service; Vance v. Rumsfeld, Nos. 10-1687, 10-2442; Equipo Nizkor). Radio Nizkor, 16Aug11.

On August 8th, 2011, the U.S. Court of Appeals for the Seventh Circuit in Chicago in the case Donald Vance and Nathan Ertel v. Donald Rumsfeld and The United States of America, ruled that two American citizens can continue with their lawsuit holding former Secretary of Defense Donald Rumsfeld personally responsible for their alleged torture.

Both plaintiffs worked as contractors in Iraq and were wrongfully detained and subjected to "enhanced interrogation techniques" by American military officers.

"The Court agreed with several rulings of a lower court regarding the case. Specifically, the Seventh Circuit found that Vance and Ertel 'alleged in sufficient detail facts supporting Secretary Rumsfeld's personal responsibility for the alleged torture,' 'that Secretary Rumsfeld is not entitled to qualified immunity on the pleadings,' and that 'a Bivens remedy is available for the alleged torture of civilian U.S. citizens by U.S. military personnel in a war zone.' (Bivens remedies allow for citizens to sue for damages for constitutional violations committed by federal agents.)"

On Apr. 16, 2006, two U.S. contractors in Iraq's Red Zone were handcuffed, blindfolded and transported to Camp Cropper, a U.S. military facility located a few miles from Baghdad International Airport, where they were detained as security internees.

Held without a trial or court hearing and tortured, the plaintiffs are suing for damages rendered against them in Camp Cropper, where Rumsfeld and several other unnamed officials allegedly "developed, authorized and used harsh interrogation techniques on them", thus violating their basic civil, constitutional and human rights...

Out of many suits brought against Rumsfeld over the torture of detainees in Iraq, Vance is one of only two that has been allowed to proceed... On August 2, 2011, the United States District Court for the District of Columbia, in Washington DC, upheld the validity of a constitutional rights claim by Doe against Rumsfeld for his role in the torturing and illegal imprisonment of Doe, a U.S. citizen who was working as a translator in Iraq.

The Vance-Ertel case exposes the myriad links between private contractors, U.S. forces, U.S. government officials and intelligence agencies that often converge in the dark cells of detention centres such as Abu Ghraib, Guantanamo Bay and Camp Cropper...

Upon analysing whether plaintiffs' allegations of torture entail a violation of their constitutional right to substantive due process, the court said that "The Supreme Court 'has long held that certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause.'"

The court rejected the claim that government officials should be above the law, stating in its final decision, "We see no persuasive justification in ... case law or otherwise for Rumsfeld's most sweeping argument, which would deprive civilian U.S. citizens of a civil judicial remedy for torture or even cold-blooded murder by federal officials and soldiers, at any level, in a war zone."

"Given the totality of the plaintiffs' allegations, that they were interrogated with physical violence and threats, were kept in extremely cold cells without adequate clothing, were continuously deprived of sleep..., a reasonable official in Secretary Rumsfeld's position in 2006 would have known that this amounted to unconstitutional treatment of a civilian U.S. citizen detainee."

The court also stated that "The wrongdoing alleged here violates the most basic terms of the constitutional compact between our government and the citizens of this country..."

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June 2011

EU/USA - European Commission's Legal Service says EU-USA PNR Agreement is not Compatible with Fundamental Rights. (StateWatch). Radio Nizkor, 28Jun11.

On May 18th, 2011, the European Commission's Legal Service sent a Note to the Director-General of Home Affairs stating that it does not consider the planned agreement with the USA to exchange PNR (Passenger Name Record) data on individuals is "compatible with fundamental rights".

The Commission, which has been in charge of negotiating the agreement with the USA, has circulated the final agreement prior to formally submitting it to the Council of the European Union and the European Parliament for their agreement. This draft was distributed among Delegations on May 20th, 2011.

Said agreement has not been amended to meet the concerns of the Legal Service. Formally, the European Parliament cannot amend the agreement but it has to agree it - in effect, the parliament can veto the planned Agreement.

The European Commission's Legal Service Note says that the Legal Service has reviewed the draft agreement in respect of fundamental rights and: "considers that there are grave doubts as to its compatibility with the fundamental right to data protection." It concludes in fact that the Legal Service "does not consider the agreement in its present form as compatible with fundamental rights." [...]

On this matter, Tony Bunyan, Statewatch Director, comments:

"Secret Minutes of EU-US meetings since 2001 show that they have always been a one-way channel with the US setting the agenda by making demands on the EU. When the EU does make rare requests like on data protection, because US law only offers protection and redress to US citizens, they are bluntly told that the the US is not going to change its data protection system - as they were at the EU-US Justine and Home Affairs Ministerial Meeting in Washington on 8-9 December 2010.

This Agreement does not meet EU data protection standards of proportionality or purpose limitation, nor does it provide judicial redress to data subjects or any guarantee of independent oversight.

The European Parliament should refuse to consent to this Agreement as it is empowered to do under the Lisbon Treaty."

What happens to your personal data when you board a plane, open a bank account, or share photos online? How is this data used and by whom? How do you permanently delete profile information on social networking websites? Can you transfer your contacts and photos to another service?

Controlling your information, having access to your data, being able to modify or delete it – these are essential rights that have to be guaranteed in today's world.

The European Commission announced on November 4th, 2010, a strategy to "protect individuals' data in all policy areas, including law enforcement, while reducing red tape for business and guaranteeing the free circulation of data within the EU.

The key goals include, as the Electronic Privacy Information Center informs, "strengthening the rights of individuals, enhancing the free flow of information, extending privacy safeguards to police and criminal justice records systems, ensuring high levels of protection for data transferred outside of the European Union, and more effective enforcement of privacy rules. The new policy will build on the 1995 EU Data Directive which is the foundation for much of privacy law across Europe".

The current regulatory framework is basically provided by the Directive 95/46 of the European Parliament and the Council, of October 24th 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data". This general Data Protection Directive has been complemented by other legal instruments, such as the e-Privacy Directive for the communications sector..

In 2009, the Commission launched a review of the current legal framework on data protection, starting with a high-level conference in May 2009, followed by a public consultation running until the end of 2009. Targeted stakeholders consultations were organised throughout 2010.

This policy review will be used by the European Commission with the results of a public consultation to revise the EU’s 1995 Data Protection Directive. Public submissions and comments can be made on the European Commission’s public consultation website until January 15, 2011.

Building on this, the Commission will present proposals for a new general data protection legal framework in 2011, which will then need to be negotiated and adopted by the European Parliament and the Council...

Peter Hustinx, the European Data Protection Supervisor (EDPS), spoke to the press about this subject on November 15th. He emphasised the importance of the reform of legal framework for data protection and insisted on the need for a strong and effective data protection in a society where personal information is used in quantities that cannot be measured, very often without individuals being aware of it...

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Usa - District Court affirms its dismissal of civil lawsuit brought by family members of wrongfully detained men who died at Guantánamo. (CCR). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 17Nov10

On September 29th, 2010, the United States District Court for the District of Columbia affirmed its decision to dismiss Al-Zahrani v. Rumsfeld, a civil lawsuit brought by the Center for Constitutional Rights (CCR) and co-counsel concerning the deaths of three Guantánamo prisoners in June 2006.

The Court denied plaintiffs' motions for reconsideration despite newly-available evidence from soldiers stationed at the base at the time of the deaths that strongly suggest the men were killed at a black site at Guantánamo and a government cover-up of the true cause and circumstances of the deaths. The government reported the deaths as suicides.

The case, filed on behalf of the families of two of the deceased, Yasser Al-Zahrani of Saudi Arabia and Salah Ali Abdullah Ahmed Al-Salami of Yemen, charged the government and 24 federal officials with responsibility for the men's abuse, wrongful detention and ultimate deaths...

The case was initiated in the District Court for the District of Columbia on June 10, 2008, and the defendants subsequently moved to dismiss. On February 16, 2010, the district court granted the defendants’ motions and dismissed the case, holding that national security considerations prevented the court from hearing the families' claims...

Following the dismissal, the families filed a motion for reconsideration on the basis of the evidence from the soldiers, as reported by Scott Horton in Harper's Magazine in January 2010, arguing that the new facts compelled the court to reopen the case and they requested for permission to amend their complaint to incorporate the Newly-Discovered Evidence...

On 20th October 2009 the Free University of Brussels hosted a conference on "Terrorism lists, executive powers and human rights".

The conference was organised by the European Center for Constitutional and Human Rights and the Université Libre de Bruxelles with the support of the Transnational Institute and of Statewatch amongst other organisations.

This audio document contains the speech delivered by Gilles de Kerchove, EU Counter-terrorism coordinator, under the title "Tackling terrorism through asset-freezing and terrorist designation”. In his speech, Mr. de Kerchove:

1) Makes some prelimimary remarks regarding the "terrorist designation" system, stating that these proceedings are of an administrative nature. "It is not a criminal sanction, it is a purely administrative procedure". "The decision which leads to the listing of a person or an organization is a political and administrative one". At the same time, the speaker recognizes that "it has a very serious negative impact on the person’s freedom and property".

There are two systems in Europe based on two major UN Security Council resolutions:

a) UN listing resolution (UNSC Res. 1267, adopted in 1999). EU member states decided to implement this decision collectively by tasking the Commission to transpose it to the legal order of the Community and therefore ensure its direct application within the EU.

b) Based on SC Res. 1373 which asks all the members of the UN to have an autonomous mechanism to list individuals and organizations linked to terrorism; here again the EU decided to have a common mechanism. Following the TEC, the EU can only freeze assets of “external terrorists”, and not terrorists operating whithin the EU.

Some EU states do not have a legal base for administrative freezing, they use a judicial freezing, or confiscation, which is not exactly adequate according to the speaker.

2) Regarding the legal challenges in court, the speaker refers to the two main cases which prompted a significant change: a) The PMOI (People's Mojahedin Organization of Iran) decision of the Court of First Instance of the European Communities (CFI) regarding the EU autonomous designation procedure, where the Court declared that the proceedings did not respect the due process of law, and b) The Kadi decision of the European Court of Justice related to the UN designation (Court said that Council had not respected the due process rights of applicants, specially the right of defense and reversed the CFI's prior decision). As a result of these decisions, the Commission drafted an amendment to the EU Council 2002 Regulation in order to, in a way, take the improvement already decided after the PMOI case, and import them when implementing the UN SC decision.

3) Talking about the "way forward", the speaker said that "Some improvements have been done, but not enough. We need to improve further the fairness of the listing procedure. The main proposal brought forward is to create an independent review of the decision of the 1267 committee: either an specially constituted tribunal, or a sort of ombudsman, an impartial review panel to advise." "The procedure itself has to be improved, as well as the quality of the information on the base of which a person or an organization is put on the list. Accurate identification is necessary. A smaller but more accurate consolidated list needs to be produced, at least.

"The more the list will be reliable the more the European Court of Justice will abstain from reviewing the substance of the case". Mr. De Kerchove sees a problem on the wish of the Court of Justice to get access to the whole file, given that it is a classified file. "If we go that way, at some stage it would be necessary to set up within the Court of Justice a sort of special chamber to allow the court to have access to confidential matters."

According to the speaker, the challenges ahead can be summarized as: trying to convince the US to improve the UN listing regime and, 2nd step, the Lisbon Treaty.

Radio Nizkor's editorial note:This speech by Mr. De Kerchove clearly shows the arguments offered by the defenders of what we call the "global state of exception", as that term is used by Carl Schmitt. The argument uses "terrorism" as a basis to both expand executive powers and to quash civil liberties and human rights. It also consolidates a system outside the law which allows the circumvention of due process and the protection of civil rights to the extent that the classification of individuals and groups as “terrorists” becomes dependent solely on an administrative decision, not only lacking legitimacy from an international law perspective but also infringing the principle of the legality of state acts.

This audio document contains the speech delivered by Jan Fermon, attorney for Jose Maria Sison in Sison vs. EU, at the Conference "Terrorism Lists, Executive Powers and Human Rights", held on the 20th of October 2009 at the Free University of Brussels

Jose M. Sison is a Filipino national who has been listed on the EU list.

In his speech, Jan Fermon:

- Describes some of the aspects of the proceedings and their developments.
- Comments on the improvements referred to by Mr. De Kerchove (PMOI case) and their impact on Sison's case.
- Comments on the devastating influence of the listing on the ongoing peace process in the Philippines.

ABOUT THE PROCEEDINGS: Jose M. Sison was listed first by the US on the 12th of August 2002. One day after he was put on a Dutch national list, for he is residing in Holland since 1988. In September 2002, after announcement that Sison will take this matter to a Dutch court, he was taken off the Dutch list and put on the EU list, so finally the case had to be brought before the European Court of Justice, where the decision process is much slower. The first decision took 5 years, the second one 2 more years. The ruling was in favor of Sison.

As for the reasons why Jose M. Sisan was on the list, the Dutch government provided no answer. The Council of the EU responded, first, that the information grounding his inclusion on the list was secret; when access to the file was then requested, the answer was that there was no file. Later on, it was admitted that there was a file, but the file was submitted to the Committee by a member state who took the documents back... and the information as to which state submitted the documents is also secret. According to the speaker:

1) In terms of due process of law this means that the EU, at least at this initial states, is acting as the Spanish inquisition, where the whole proceedings were conducted on a secret file and the arguments held against the “defendant” where kept away from him. It is the defendant who has to show that he/she is not a terrorist.

2) Consequences: The sanctions imposed upon the person are extremely harsh. Sison was not allowed to work in Holland, where he had a modest social allowance which was taken away from him. He could not have access to any insurance. Not being able to pay for rent of his apartment, he received a letter saying that he had to leave the apartment. It is all about a a sanction that was abolished by the French revolution, and that is call “civil death”, by which the individual is excluded as a person from all economic and social life.

The speaker asks himself whether all this has anything to do with the struggle against terrorism?. The answer is no. The amount of funds deposited in the bank account that was frozen was ridiculous. No suspicious transactions had ever been found by the Dutch authorities, as stated by the attorneys representing the state before the European Court of Justice. It is an instrument of political pressure rather than a rational and legitimate way of combating the financing of terrorism. In fact, Sison case shows that the question whether Sison had been involved on financing terrorism has not even been taken into consideration in any way.

WHO IS JOSE MARIA SISON: Jose Maria Sison was the founder of the Communist Party of the Philippines. He was arrested under the Marcos regime and held for 10 years in solitary confinement. Since 1969 an armed conflict exists in the Philippines and since the beginning of the '90 the government and the National Democratic Front of the Philippines (NDFP) decided to engage in a peace process, which led to the signing of important agreements, the first of which was a road map to the process itself and a "Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law", which included a Joint Monitoring Committee in charge of monitoring its implementation. Under this agreement both parties committed themselves to bring to justice human rights violators and war crimes perpetrators.

At the end of the 90's it became evident that the government of the Philippines could not deliver on land reform and democratic reforms, thus in violation of the initial agreement. At that time, before 9/11, the government put pressure on the NDFP to accept its proposals in the peace negotiations and threatened with criminalizing the movement and the negotiators as terrorists. Actually that was what happened.

RESULTS IN THE FIELD: These negotiations, based on respect for international law and mutual recognition, were broken as a result of the criminalization of political opponents and the rebellion. The government of the Philippines engaged since into a completely different approach. As a result: 800 people have been killed in the meanwhile. The EU legitimized through this listing this evolution in the Philippines and helped the government to depart from the negotiating process and to engage into brutal and savage repression against progressive movements, hence supporting a repressive government.

SISON has been delisted by the European court twice: in July 2007 on procedural grounds (lack of state of reasons and contradiction of evidence); then, 10 days before the court decided to annul the Council decisions by which Sison was put on the list between 2002 and 2006, the EU put him on the list again, hence leading to a second Sison case.

In this second series of listing the Council's state of reasons did not have to do with terrorism and was in contradiction with the own legal requirements the Council set up itself.

Fermon is rather skeptical about the purported advances concerning notification and the statement of reasons, given that when defense counsel got the proposed statement of reasons, counsel wrote a letter to the Council and all 27 member states warning of the blatant error...Two months later the EU was bringing forward the same statement of reasons.

In the last Sison case (Sep. 2009), the Court stated that a decision taken from an asylum case does not meet the requirements in order to put somebody on the list.

Jan Fermon sees an extremely worrying development in the announcement made by Gilles de Kerchove, the EU Counter-terrorism coordinator: The common position would be changed in such a way that in the future there will be no requirement for a decision by a competent judicial authority for investigation. Instead, the fact of the secret services having launched an investigation would be considered to be enough to put somebody on the list. According to De Kerchove speech, the legal requirement by which at least a judge or judicial authority should have looked into the case at the national level before the EU can list a person, would be eliminated.

For further contextual information on the Sison Case and the peace negotiation process in the Philippines you can listen to "Human Rights and Peace Negotiations: The Filipino Peace Negotiation Model", an interview to Rey Claro Casambre, Executive Director of the Philippine Peace Center, conducted by Prof. Richard Wilson, Professor of Law and Director of the International Human Rights Law Clinic, American University of Washington.

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EU - Challenging arbitrary regimes: The case of the People's Mojahedin Organization of Iran (PMOI), by Prof. Eric David, President of the International Law Centre, ULB. (Conference: "Terrorism Lists, Executive Powers and Human Rights", Université Libre de Bruxelles, 20Oct09). Radio Nizkor, 16Aug10

This audio document contains the speech delivered by Prof. Eric David, President of the International Law Centre at the Université Libre de Bruxelles (ULB), at the Conference "Terrorism Lists, Executive Powers and Human Rights", held on the 20th of October 2009 at the ULB.

In his speech, prof. Eric David explains the history of the People's Mojahedin Organization of Iran (PMOI) and carries out a brief examination of the case law of the Court of First Instance of the European Court of Justice.

The PMOI case resulted in the first decision which changed the pernicious previous judgments issued in the Kadi and Al Barakaat case (2005, Court of First Instance of the European Communities) and the Ayadi case (2006).

The PMOI is a movement which participated at the end of the 70's and the beginning of the 80's in the overthrow of the Shah's regime. Differences between the MPOI and the Islamists arose soon after. The MPOI members were forced to leave Iran and sought refuge in Iraq. The PMOI conducted actions against the Iranian army between 1986 and 2000. In 2003 the US invaded Iraq and the PMOI declared themselves neutral, giving their weapons to the US. From that time de PMOI decided not to use violence against the regime in Iran.

Case before the Court of First Instance.

By a 2 May 2002 decision, the Council of the European Union included the PMOI in the Community list of persons and entities whose funds must be frozen in order to combat terrorism. Since then, the Council adopted several decisions giving effect to the list in question. The PMOI continued to be included in that list.

In its first judgment of 12 December 2006, the Court annulled one of the decisions on the grounds that it did not contain a sufficient statement of reasons, that it had been adopted in the course of a procedure during which the applicant's rights of defense had not been observed and that the Court itself was not in a position to review the lawfulness of that decision. Nevertheless, the PMOI remained on the list until December 2008.

In a second judgment of 23 October 2008 (the PMOI judgment), the Court annulled a later decision on the grounds that the Council had failed to give sufficient reasons as to why it had not taken into account the judgment of a British judicial authority, the Proscribed Organisations Appeals Commission ("POAC"), ordering the removal of the PMOI from the British list of terrorist organizations. In this judgment the Court recalled that it was imperative when adopting Community fund-freezing measures that the Council ensure the existence of a decision of a competent national judicial authority, as well as verifying any consequences of this decision at the national level. In its judgment, the POAC described as ‘perverse’ and ‘unreasonable’ the Home Secretary’s conclusion that the applicant was still an organization concerned in terrorism.

The European court decision to annul the decision of the Council to include in the list the PMOI faced opposition from France, where judicial proceedings against “X” (persons presumed to be members of the PMOI) had been initiated. Hence, on 15 July 2008 the Council adopted a new decision which maintained the PMOI’s name on the updated Community funds-freezing list.

The Court found again, on December 4, 2008, that the contested decision was adopted in breach of the PMOI's rights of defence. The Council has failed to explain the specific reasons as to why the acts ascribed to the persons alleged to be members of the PMOI should be attributed to the PMOI.

The refusal by the Council and the French authorities to communicate, even to the Court alone, the information contained in this document has the consequence that the Court is unable to review the lawfulness of the contested decision, which infringes the PMOI’s fundamental right to an effective judicial review.

Rights at stake in this situation:

The listing of an organization entails very serious material consequences: freezing of assets, obstacle to liberty of movement of its members, the right to property, freedom of movement, which are not respected. There is no judicial intervention in this.

Prof. Eric David responds to Gilles de Kerchove, saying that the administrative and political nature of the measure does not mean that you are beyond the obligation to go before a judge: there is a real violation of basic rights and it is quite clear that such a decision must be reached after a serious investigation of the evidence brought forward by a prosecutor.

The speaker acknowledges some change in the practice of the EU concerning insufficient statement of reasons when they decide to list a person or a movement. The statement of reasons in the case of the PMOI was just a 10 line assertion saying that the PMOI had carried out a number of violent acts against Irani persons, but this does not prove that these acts are terrorists acts. While discussing these matters one have to analyze whether the situation is a situation of armed conflict or rather of terrorist violence.

Beyond what is presented as an administrative sanction there is a real criminal sanction. Just what happened in this case. This listing entails important violations of human rights and civil liberties.

The UN human rights committed considers the right to a judge (art. 14 of the ICCPR: “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal”) as a peremptory rule, as a ius cogens rule. However, the EU Council do not respect what is a peremptory rule, which is completely regrettable.

EU - European Parliament passes resolution on the new EU-USA PNR agreement
calling it "substantially flawed". Radio Nizkor, 19Jul07

Members of the European Parliament fear that the new Passenger Name Record agreement between the European Union and the
United States, reached on June 28th, 2007, fails to protect citizens' data.

The European Parliament passed a resolution on July 12, 2007 on this agreement expressing that that the new deal still
fails to offer an adequate level of data protection and it has been concluded without any involvement of parliaments from both
sides, lacking democratic oversight.

While recognising the difficult conditions under which the negotiations took place, MEPs regret that the EU-US agreement
for the transfer of Passenger Name Records is "substantively flawed", in particular by "open and vague definitions and
multiple possibilities for exception".

Even though the European Parliament welcomed the provision that existing data protection law for US citizens (US Privacy
Act) will be extended administratively to EU citizens' data processed in America, MEPs felt there is still much more to be
improved... It "criticises the failure of the new PNR agreement to offer an adequate level of protection of PNR data, and
regrets the lack of clear and proportionate provisions as regards the sharing of information and retention and supervision by
data protection authorities; is concerned about the numerous provisions that are to be implemented at the discretion of the US
Homeland Security Department"...

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EU - European Commission to propose EU Passenger Name Record travel
surveillance system . (StateWatch). Radio Nizkor, 19Jul07

After the European Union concluded on June 28, 2007 a controversial new agreement with the USA giving its agencies access
to PNR (passenger name record) personal data on everyone flying to and from that country, the European Commissioner for
justice and home affairs, Mr Frattini, said that he would present a Framework Decision for a EU PNR system in October.

Mr Frattini is reported as saying that, in the wake of the attempted attacks in London and Glasgow: "I suggest that all
member states should equip themselves with a PNR system and share information with others when relevant".

Mr Frattini's proposal is all the more confusing as there appears to have been no reference to the implementation of the
April 2004 EU Directive on the obligation of carriers to communicate passenger data which had to be implemented in all member
states by 5 September 2006...

The data to be sent comprises, according to said Directive, personal data on each passenger: type of travel document (eg:
passport/visa), nationality, full name and date of birth, that is, the data held on the "machine readable zone" (MRZ) of
passports (just four items of data). This is known as Advance Passenger Information or "API".

It appears that Spain is the first EU country to start collecting API (Advance Passenger Information) from incoming
travellers as from 13 June 2007 - the UK requires Advance Passenger Information from targeted countries.

Article 3.1 of the 2004 Directive refers to transferring data "by the end of check-in". However, airlines are likely to
collect Advance Passenger Information data when the ticket is booked days or weeks before the flight. This data could be
passed to the national agencies well prior to check-in and be followed by a final passenger manifest after check-in.

So the question has to be asked: If the collection of Advance Passenger Information at the flight booking stage becomes the
norm why is Passenger Name Record needed?...

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June 2007

EU/US - EU negotiators agree that PNR data will be held for 7 years,
doubling the current 3.5 years, and also that data can be access for a further 8 years. (StateWatch). Radio Nizkor,
29Jun07

An "Extraordinary meeting" of the Permanent Representatives Committee (COREPER) was held in Luxembourg on 12 June 2007
during the Justice and Home Affairs Council. The sole subject on the agenda was the EU-USA passenger name record (PNR)
agreement.

The current "Undertakings" state that PNR data will be held for: "3.5 years from the date the data is accessed (or
received) from the air carrier's reservation system. After 3.5 years, PNR data that has not been manually accessed during that
period of time, will be destroyed. PNR data that has been manually accessed during the initial 3.5 year period will be
transferred by the Customs and Border Protection Department to a deleted record file." Under the proposed new agreement: "PNR
data would be kept for 7 years as "active" data and 8 years as "dormant" data." Under the existing agreement data which has
not been accessed for 3.5 years is destroyed.

Under the proposed agreement all data will be held for 15 years...

The USA has used the successful challenge against the legal basis of the 2004 EU-US agreement (plus "Undertakings") on the
transfer of passenger name records in the European Court of Justice by the European Parliament to put forward significant
changes - to which the EU has agreed.

"What is particularly outrageous is that if the law changes in the USA the way the agreement is implemented changes too
without any renegotiation - which is very worrying given the nature of new laws which remove the rights of suspects including
habeaus corpus", commented Tony Bunyan, Statewatch editor...

On June 27th, 2007, two weeks after the EU Permanent Representatives Committee meeting on the agreement, the European Data
Protection Supervisor, Peter Hustinx, addressed a letter to the German Council Presidency, expressing grave concern" at the
proposals to:

extend the time personal data is held from 3.5 years to 15 years:

data can be passed to a "broad range of US agencies" with "no limitation" on its further processing;

the absence of a "robust legal mechanism" for EU citizens to "challenge misuse" of their data;

Usa - The legal situation of the Guantanamo detainees, the
Supreme Court decision on Hamdan v. Rumsfeld and its implications for the future. (By Richard Wilson). Radio
Nizkor, 28Sep06.

Richard Wilson, Professor of Law and Director of the International Human Rights Law Clinic at the American University of
Washington, provides us with a new and in depth update on the Detainees at Guantanamo Bay, their legal situation and in
particular the legal situation of Wilson's client Omar Khadr, a Canadian citizen detained by U.S. forces in July 2002 when he
was 15 years old.

Richard Wilson has collaborated with Equipo Nizkor for several years. He is also a member of Equipo Nizkor‘s Board of
Directors.

Wilson has addressed for Radio Nizkor the situation of the Guantanamo Detainees and the US Administration policies on
Guantanamo on two previous occasions:

In this speech Wilson analyzed the "legal black hole" surrounding the status of the Guantanamo detainees, as well as the
question of precautionary measures that the Inter-American Commission on Human Rights had asked the US government to adopt.

In this new and in depth interview Richard Wilson provides the audience with:

1) An Update on the Detainees at Guantanamo Bay, their legal situation and in particular the legal situation of Wilson’s
client Omar Khadr. [Starting at 00:02:48]
2) A detailed review of the decision by the US Supreme Court in the case of Hamdan vs. Rumsfeld decided on June
29th, 2006, and [Starting at 00:31:15]
3) A detailed comment on the possible legal implications for the future of the Hamdan decision and some of the current
pending actions in the US Courts that have been left unresolved by this decision. [Starting at 01:10:39]

Upon addressing those matters, Wilson provides the audience with an outstanding systematization of the current legal
situation of the Guantanamo Detainees and the issues at stake in order to properly exercise their defense.

Usa - CIA expands operational file secrecy and Department of Defense seeks
a broad new exemption from FOIA. (Project on Government Secrecy of the Federation of American Scientists). Radio Nizkor
with the
collaboration of the Schell Center for International Human Rights at Yale Law School, 07May06

"The Central Intelligence Agency conducted a review of its "operational files" last year, as it is required to do every
ten years under the CIA Information Act of 1984, to see if any such files could have their "operational" designation
rescinded, making them subject to Freedom of Information Act requests... But instead of removing any files from operational
status, as contemplated by the 1984 Act, the CIA added nearly two dozen new categories of files that will now be exempt from
search and review under the FOIA, according to a newly disclosed report to Congress."

On the other hand, "The Department of Defense is seeking a broad new exemption from the Freedom of Information Act for
unclassified information relating to weapons of mass destruction. According to the proposed legislation, 'Examples of such
information could include ... formulas and design descriptions of lethal and incapacitating materials; maps, designs,
security/emergency response plans, and vulnerability assessments for facilities containing weapons of mass destruction
materials.' The proposal is puzzling because most such information, including that which is not classified, is already exempt
from the FOIA..."

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Usa - U.S. to switch from a "data preservation" to a EU-like "data
retention" system that could pose serious privacy risks. (Electronic Privacy Information Center - EPIC). Radio Nizkor with
the
collaboration of the Schell Center for International Human Rights at Yale Law School, 07May06

The Electronic Privacy Information Center, EPIC, informs that Members of Congress are calling for laws in the United
States that would compel Internet service providers and telecom companies to store information about their customers for
months or years and make those records available to the police upon request...

To date, law enforcement has not been able to show that retaining all users' data helps to solve criminal cases. Traffic
data is seldom essential in criminal investigations and data retained for longer than 6 months is rarely useful.

Retaining all customer data could also raise serious security and privacy risks..."

Usa - In a Freedom of Information Act Lawsuit, Former Top Official in the
US Justice Department Concludes that Surveillance Program was Illegal. (Electronic Privacy Information Center). Radio
Nizkor with the
collaboration of the Schell Center for International Human Rights at Yale Law School, 23Apr06

"In December 2005, the New York Times reported that President Bush secretly issued an executive order in 2002 authorizing
the National Security Agency (NSA) to conduct warrantless surveillance of international telephone and Internet communications
on American soil. President Bush acknowledged the existence of the NSA surveillance program and vowed that its activities
would continue.

The Electronic Privacy Information Center - EPIC- submitted Freedom of Information Act (FOIA) requests to the NSA and four
Department of Justice components just hours after the existence of the warrantless surveillance program was first reported.
Noting the extraordinary public interest in the program — and its potential illegality — EPIC asked the agencies to expedite
the processing of the requests...

Documents obtained by EPIC earlier in March 2006, through the FOIA litigation, reveal that a former top official in the
Justice Department doubted that the domestic surveillace program was allowed under the Authorization for Use of Military Force
Resolution..."

Usa - U.S. secret detention facilities in Europe catch the attention of the
Council of Europe. (The New York Times; Human Rights Watch; Council of Europe Parliamentary Assembly). Radio Nizkor with
the
collaboration of the Schell Center for International Human Rights at Yale Law School, 03Dec05

"When the Bush administration rewrote the rules for dealing with prisoners after 9/11, needlessly scrapping the Geneva
Conventions and American law, it ignored the objections of lawyers for the armed services. Now, heedless of the lessons of Abu
Ghraib, the civilians are once again running over the people in uniform. Tim Golden and Eric Schmitt reported yesterday in The
Times that the administration is blocking the Pentagon from adopting the language of the Geneva Conventions to set rules for
handling prisoners in the so-called war on terror...

Dana Priest reports in The Washington Post that even the Central Intelligence Agency's clandestine operators are getting
nervous about the network of secret prisons they have around the world - including, of all places, at a Soviet-era compound in
Eastern Europe."

"Human Rights Watch has conducted independent research on the existence of secret detention locations that corroborates the
Washington Post's allegations that there were detention facilities in Eastern Europe." Specifically, Human Rights Watch "have
collected information that CIA airplanes traveling from Afghanistan in 2003 and 2004 made direct flights to remote airfields
in Poland and Romania."

In turn, On November 7th. 2005, the Legal Affairs Committee of the Council of Europe Parliamentary Assembly (PACE)
appointed its Chairperson Dick Marty (from Switzerland, member of the Alliance of Liberals and Democrats for Europe) as
rapporteur to examine the subject of alleged secret CIA detention centres...

Gbr - New army special forces regiment involved in the operation that led
to the killing of an innocent Brazilian. (The Guardian, UK). Radio Nizkor, 10Aug05.

According to an article published on August 4, 2005 by the British newspaper “The Guardian”, a new army special forces
regiment was involved in the operation that led to the killing of an innocent man at Stockwell tube station in south London.

The article says that the Special Reconnaissance Regiment, set up in April to help combat international terrorism, was
deployed in the surveillance operation which led to the shooting of Jean Charles de Menezes, a Brazilian electrician, on July
22, according to Whitehall sources...

On August 3, Whitehall sources told the Guardian that soldiers of the Special Reconnaisance Regiment, modelled on an
undercover unit that operated in Northern Ireland, was engaged in "low-level intelligence behind the scenes" when the
Brazilian was shot. There was "no direct military involvement in the shooting", the sources said...

The regiment absorbed 14th Intelligence Company, known as "14 Int", a plainclothes unit set up to gather intelligence
covertly on suspect terrorists in Northern Ireland. Its recruits are trained by the SAS...

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Usa - Pentagon thinking up scenarios for martial law in US. (The
Washington Post). Radio Nizkor, 10Aug05.

According to a report published on August 8, 2005 by the Washington Post, "the U.S. military has devised its first-ever
war plans for guarding against and responding to terrorist attacks in the United States, envisioning 15 potential crisis
scenarios and anticipating several simultaneous strikes around the country, according to officers who drafted the plans".

The report - elaborated by Bradley Graham, Washington Post Staff Writer - says that "the classified plans, developed at
Northern Command headquarters, outline a variety of possible roles for quick-reaction forces estimated at as many as 3,000
ground troops per attack, a number that could easily grow depending on the extent of the damage and the abilities of civilian
response teams.

The possible scenarios range from "low end," relatively modest crowd-control missions to "high-end," full-scale disaster
management after catastrophic attacks such as the release of a deadly biological agent or the explosion of a radiological
device, several officers said"...

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July 2005

EU - Update on anti-terror policies and data retention in the European
Union. (European Commission Newsroom; StateWatch.). Radio Nizkor, 24Jul05.

A "Declaration on the European Union response to the London bombings", that defines the priorities to combat terrorism and
indicates a strict timetable for implementing practical measures, was adopted on July 13th. 2005 in Brussels at the end of an
extraordinary meeting of the European Interior ministers.

According to this Declaration, the Council will:

agree the Framework Decisions on the Retention of Telecommunications Data (October 2005), on the European Evidence Warrant
(December 2005), and on the exchange of information between law enforcement authorities (December 2005); adopt the Decision on
the exchange of information concerning terrorist offences (September 2005);

combat terrorist financing by agreeing by December 2005 a Regulation on Wire Transfers; adopting the Third Money
Laundering Directive and the Regulation on cash control by September 2005; agreeing a Code of Conduct to prevent the misuse of
charities by terrorists (December 2005); reviewing the overall EU’s performance (December 2005) and urging Member States to
ensure that comprehensive financial investigation is a part of all terrorist investigations and to develop robust asset
freezing powers.

Regarding the specific issue of data retention, a proposal for an EU Framework Decision on the mandatory retention of all
traffic data was put forward by the UK, Ireland, France and Sweden on 28 April 2004. Tony Bunyan, Statewatch editor, comments
that "...If this proposal was limited to tackling terrorism that would be one thing but it is not. It will put everyone in the
EU under surveillance, be used to tackle crime in general and potentially could be used for social and political control."

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May 2005

Declaration on Upholding Human Rights and the Rule of Law in Combating
Terrorism (The Berlin Declaration). (International Commission of Jurists). Radio Nizkor with the collaboration of the
Schell Center for International Human Rights at Yale Law School, 06May05

On 28 August 2004, 160 lawyers from around the world, meeting at the International Commission of Jurists biennial
conference in Berlin, adopted a Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism.

"Since September 2001 many states have adopted new counter-terrorism measures that are in breach of their international
obligations. In some countries, the post-September 2001 climate of insecurity has been exploited to justify long-standing
human rights violations carried out in the name of national security."

The subject of terrorism came up in several resolutions and decisions adopted at the 61st. session of the Commission on
Human Rights, which concluded on April 22, 2005. During this year's session a group of human rights organizations issued a
joint press release calling on the Commission to act to address meaningfully one of the greatest human rights challenges
presently faced by the international community: the need to protect human rights in combating terrorism.

The Berlin Declaration highlights the grave challenge to the rule of law brought about by excessive counter-terrorism
measures, reaffirms the most fundamental human rights violated by those measures, and delineates methods of action to address
the challenge.

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April 2005

UN - Statement of the International Rehabilitation
Council for Torture Victims before the 61st. session of the UN Commission on Human Rights. Radio
Nizkor with the collaboration of the Schell Center for International Human Rights at Yale Law School,
05Apr05

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December 2004

Usa - Attorneys representing several Guantanamo
detainees challenge the Administration's effort to undermine Supreme Court's decision in Rasul v.
Bush. (Center for Constitutional Rights). Radio Nizkor with the collaboration of the Schell
Center for International Human Rights at Yale Law School, 20Dec04.

On December 1st, 2004, the Center for Constitutional Rights asked two federal court judges to
forcefully reject the Bush Administration's effort to dismiss 12 Habeas Corpus petitions brought on
behalf of individuals detained at Guantanamo Bay.

In an extraordinary move, the government has essentially sought to overturn the decision of the U.S.
Supreme Court in the landmark case Rasul v. Bush.

On November 5th, 2004, a group of attorneys representing several Guantanamo detainees submitted a
Memorandum in opposition to the government's motion to dismiss the instant habeas petitions.

The Petitioners assert in their Memorandum the following:

that the President's exercise of his war powers is subject to judicial review

that the Supreme Court has already determined that the Guantanamo detainees have stated a claim

that pertinent case law, moreover, confirms that the detainees have due process rights under the
Constitution that they may vindicate through habeas actions.

that the detainees also have rights under the Geneva Conventions and other international law that
may be vindicated in a habeas action and,

that the detainees have common law rights that inhere in the habeas statute and do not depend upon
the cognizability of rights otherwise provided by the Constitution, laws or treaties of the United
States.

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Usa - US District Judge ruled in Hamdan v.
Rumsfeld that the Geneva Conventions protect those incarcerated at Guantánamo. Radio
Nizkor with the collaboration of the Schell Center for International Human Rights at Yale Law School,
07Dec04.

In a decision dated November 8, 2004, US District Judge James Robertson ruled that it is unlawful to
try prisoners detained at Guantánamo by the currently constituted Military Commissions.

"In his ruling on Hamdan v. Rumsfeld, Judge Robertson asserted that the Geneva Conventions - the
conventions signed by the United States and countries all over the world to govern the conduct of nations
during wartime - protect those incarcerated at Guantánamo."

According to the Court, all those arrested in or around the conflict in Afghanistan must be treated as
prisoners of war if there is any doubt as to their status.

Under the Geneva Conventions, prisoners of war must be provided the same legal process as the soldiers
in the armed forces of the capturing army. Mr. Hamdan, the petitioner in the case, is, therefore,
entitled to have his case heard by a properly convened military court or courts martial as defined under
United States law...

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November 2004

Usa - US District Judge rejected the government's
increasing move toward secret and coercive investigatory tactics in the post-9/11 environment. Radio
Nizkor with the collaboration of the Orville H. Schell, Jr. Center for International Human Rights at Yale
Law School, 12Nov04.

In the case of Doe and ACLU v. Ashcroft et al., US District Judge Victor Marrero ruled, on
September 28th, 2004, that "the compulsory, secret, and unreviewable production of information required
by the FBI's application of 18 U.S.C. § 2709 violates the Fourth Amendment, and that the non-disclosure
provision of 18 U.S.C. § 2709 (c) violates the First Amendment."

Plaintiffs in this case, "John Doe" - an internet access firm -, the American Civil Liberties Union
(ACLU) and the American Civil Liberties Foundation, "challenge the constitutionality of 18 U.S.C. § 2709.
That statute authorizes the Federal Bureau of Investigations to compel communications firms, such as
internet service providers (ISPs) or telephone companies, to produce certain customer records whenever
the FBI certifies that those records are "relevant to an authorized investigation to protect against
international terrorism or clandestine intelligence activities".

The FBI demands under § 2709 are issued in the form of national security letters (NSLs), which
constitute a unique form of administrative subpoena cloaked in secrecy and pertaining to national
security issues. The statute bars all national security letters recipients from ever disclosing that the
FBI has issued an National Security Letter.

The Court concluded that § 2709 violates the Forth Amendment because, at least as currently applied,
it effectively bars or substantially deters any judicial challenge to the propriety of an National
Security Letter request. And also, that the permanent ban on disclosure contained in § 2709 (c) operates
as an unconstitutional prior restraint on speech of the First Amendment.

"In general, as our sunshine laws and judicial doctrine attest, democracy abhors undue
secrecy, in recognition that public knowledge secures freedom. Hence, an unlimited government warrant to
conceal, effectively a form of secrecy per se, has no place in our open society.

Such a claim is especially inimical to democratic values for reasons borne out by painful experience.
Under the mantle of secrecy, the self-preservation that ordinarily impels our government to censorship
and secrecy may potentially be turned on ourselves as a weapon of self-destruction.

When withholding information from disclosure is no longer justified, when it ceases to foster the
proper aims that initially may have supported confidentially, a categorical and uncritical extension of
non-disclosure may become the cover for spurious ends that government may then deem too inconvenient,
inexpedient, merely embarrassing, or even illicit to ever expose to the light of day.

At that point, secrecy’s protective shield may serve not as much to secure a safe country as simply to
save face."

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October 2004

Usa - Update on the situation of the detainees in
Guantanamo Bay and the current status of legal issues relating to this matter. (By Richard Wilson).
Radio
Nizkor, 02oct04.

Richard Wilson is Professor of Law and Director of the International Human Rights Law Clinic
at the American University of Washington and Equipo Nizkor collaborator.

Richard Wilson speaks about the developments in relationship to the individuals detained in Guantanamo
Bay that have happened since that previous presentation, covering mainly the following topics:

Information about children detained at Guantanamo

Relationship of the Guantanamo Bay situation and the torture scandal at Abu Ghraib prison in Iraq

Publication of internal Memoranda within the Bush Administration with regard to the approval of the
use of torture by high ranking government lawyers

The very important decisions of the US Supreme Court in June of 2004

Current status of legal issues in Guantanamo

Legal strategy pursued by lawyers in the U.S. in addressing those current issues

Potential resources for further reading

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September 2004

EU - Privacy groups warn that proposed retention of
personal data resulting from communications is necessarily an invasive act. (Privacy International
and European Digital Rights). Radio Nizkor with the collaboration of the Orville H. Schell, Jr. Center
for International Human Rights at Yale Law School, 18sep04.

Usa - American Librarians and the ACLU oppose the Patriot Act and the Bush administration’s claim
that it should be made permanent. (American Library Association / American Civil Liberties Union).
Radio Nizkor, 06Jun04.

Usa - Torture scandal is "predictable result" of US detention policies and the related information
must be disclosed. (Federation of American Scientists / American Civil Liberties Union). Radio
Nizkor, 13may04.

US policy after 9/11: The situation of Detainees at Guantanamo Bay and the Inter-American Human Rights Commission Response.By Richard Wilson, Professor of Law and Director of the International Human Rights Law Clinic, American University Washington, D.C. Radio Nizkor, 13Feb04

Richard Wilson analyses the "legal black hole" surrounding the status of the Guantanamo detainees, as well as the question of precautionary measures that the Inter-American Commission on Human Rights has asked the US government to adopt.

The Commission decided during its 114th regular period of sessions to adopt precautionary measures on behalf of the Guantanamo detainees.
The Commission asserted that:

"....where persons find themselves within the authority and control of a state and where a circumstance of armed conflict may be involved, their fundamental rights may be determined in part by reference to international humanitarian law as well as international human rights law. Where it may be considered that the protections of international humanitarian law do not apply, however, such persons remain the beneficiaries at least of the non-derogable protections under international human rights law. In short, no person under the authority and control of a state, regardless of his or her circumstances, is devoid of legal protection for his or her fundamental and non-derogable human rights".

What is this "Legal Black Hole" and what is the executive branch's theory as to why these individuals are caught there?

"The US applies a perverse logic to conclude that all the individuals detained in Guantamo are 'unlawful combatants' ".

This is what Richard Wilson clearly explains us.

Tecnical Data:

This speech was first recorded in Brussels (Belgium) on March 27, 2003; its digitization, production and online posting have been carried out by Radio Nizkor on February 22, 2004.

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